CA4: Even if Posse Comitatus Act was violated in investigation, there is no judicial remedy

Defendant argued “the Defense Criminal Investigative Service (DCIS) violated the Posse Comitatus Act (PCA), 18 U.S.C. § 1385 (2012), by participating in the criminal investigation.” The motion wasn’t timely, and, on the merits, there is no remedy for violation. United States v. Dong, 2018 U.S. App. LEXIS 9742 (4th Cir. Apr. 18, 2018):
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New Law Review Article: “The vast majority of current Fourth Amendment doctrine unfounded, incoherent, and dangerous.”

Gray David, The Fourth Amendment Categorical Imperative, 116 Mich. L. Rev. Online 14 (2017):

The vast majority of current Fourth Amendment doctrine unfounded, incoherent, and dangerous.

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D.Nev.: Court order for cell phone detail information under 18 U.S.C. § 2703(d) requires only RS

A court order for cell phone detail information under 18 U.S.C. § 2703(d) requires only reasonable suspicion, following In re Applications of the United States of Am. for an Order Pursuant to 18 U.S.C. § 2703(d), 206 F. Supp. 3d 454, 455-56 (D.D.C. 2016). United States v. Wright, 2018 U.S. Dist. LEXIS 63851 (D. Nev. Apr. 16, 2018).*

Defendant claims there is a missing warrant and defense counsel didn’t follow up and do anything about it to litigate. The claim is entirely speculative. There’s no indication there is a warrant, and defense counsel can’t be ineffective for not pursuing that which does not exist. Sheehan v. United States, 2018 U.S. Dist. LEXIS 63894 (E.D. N.Y. Apr. 17, 2018).*

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MA: Affidavit established MJ grow was for sale, not personal use

The affidavit for the search warrant established probable cause that defendant’s marijuana grow was for distribution and not for personal medical use. Commonwealth v. Richardson, 2018 Mass. LEXIS 236 (Apr. 17, 2018).

The Franks challenge here was over an internet “connection” and whether that meant ethernet cable or wifi. It doesn’t matter, because it was “connected.” United States v. Huntoon, 2018 U.S. Dist. LEXIS 61992 (D. Ariz. Apr. 12, 2018).*

Another Playpen warrant sustained. “Accordingly, even if the NIT warrant violated Rule 41, it did not violate the Constitution.” United States v. Ferguson, 2018 U.S. Dist. LEXIS 63015 (S.D. Tex. Apr. 14, 2018).*

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MO: Warrantless seizure of black box data from semi violated 4A; automobile exception didn’t apply

After an accident, the information off the data recorder on defendant’s semi was seized and then searched by the police without a search warrant. The trial court suppressed, and the state filed an interlocutory appeal. Only three of its six arguments were presented to the trial court, so only those are considered. First, defendant has standing. He was responsible for the truck, and the officers committed trespass to seize the information off the data recorder by plugging into the computer under the dash by computer download. Second, the state’s reliance on the automobile exception fails because there was no probable cause shown whatsoever that a crime occurred to justify the information seizure. Even if mere evidence may be seized, there still has to be a potential crime. Third, as to exigent circumstances that the truck could be moved, the state presented no evidence on that. Besides, the officers did a second download of braking data the next day, and that belies exigency. State v. West, 2018 Mo. App. LEXIS 378 (Apr. 17, 2018).

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E.D. Mich.: Officers’ (and government’s) assertion of consent is so false it “tarnishes the entirety of the Government’s case.”

Officers’ (and government’s) assertion of consent is so false it “tarnishes the entirety of the Government’s case.” There was nothing near reasonable suspicion or consent. United States v. Smith, 2018 U.S. Dist. LEXIS 62041 (E.D. Mich. Apr. 12, 2018):
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E.D.Mich.: Def’s alternative argument as to what SW affidavit showed doesn’t undermine PC

The defendant’s alternative argument about how the child pornography ended up on defendant’s computer didn’t undermine the probable cause for the search warrant. “The Court has already addressed Defendant’s argument that a single connection between a home computer and a URL containing child porn was an insufficient factual basis for issuing a search warrant where that URL also required a passcode to be accessed. Defendant disagrees with the reasons the Magistrate Judge and Judge O’Meara rejected this argument, and with how they applied of the fair probability standard to the information provided in the Affidavit. While Defendant’s position may have a rational basis, those grounds were considered and found unpersuasive by two judicial officers. Disagreeing with the Court’s ruling does not constitute a palpable defect that warrants granting Defendant’s Motion for Rehearing.” United States v. Evans, 2018 U.S. Dist. LEXIS 62494 (E.D. Mich. Apr. 13, 2018).

The CI related defendant was selling MDMA, heroin, and meth. The CI was corroborated by a controlled buy three days before the warrant issued. State v. Frederick, 2018 N.C. App. LEXIS 354 (Apr. 17, 2018).

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TN: Argument “the rule” of witness exclusion of Rule 615 at suppression hearing has to be made in trial court

Defendant didn’t preserve for appeal his argument that the suppression hearing court allowed witnesses to sit in the rehearing of the suppression hearing because he didn’t make it to the trial court. At any rate, the transcripts of the hearing weren’t in the record, and relief on appeal is denied for lack of a record. State v. Bohannon, 2018 Tenn. Crim. App. LEXIS 285 (Apr. 17, 2018).

Defense counsel wasn’t ineffective for not challenging the child pornography Playpen warrant because he couldn’t possibly win on that issue. United States v. McGinley, 2018 U.S. Dist. LEXIS 62175 (D. Minn. Apr. 12, 2018).*

The Franks objection to the affidavit for the search warrant fails because it was not a misrepresentation of fact; it was clearly opinion and taken as such. United States v. Westley, 2018 U.S. Dist. LEXIS 64009 (D. Conn. Apr. 17, 2018).*

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W.D.Tex.: In CA5, a person’s identity and nationality is not subject to the exclusionary rule

In the Fifth Circuit, a person’s identity and nationality is not subject to the exclusionary rule. United States v. Meza-Gonzalez, 2018 U.S. Dist. LEXIS 63254 (W.D. Tex. Apr. 16, 2018).

Defendant fails on the second prong of Franks: excising the challenged information, probable cause still exists. United States v. Wiggins, 2018 U.S. Dist. LEXIS 63028 (D. N.M. Apr. 13, 2018).*

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W.D.Okla.: DOJ subpoena issued under the Right to Financial Privacy Act was “relevant to [a] law enforcement inquiry”

A DOJ subpoena issued under the Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-3422 (“RFPA”). “Having carefully reviewed the United States’ detailed response, the Court finds that there is a reasonable belief that the records sought are relevant to the law enforcement inquiry into the laboratory. Specifically, the Court finds that the records sought touch on a matter under investigation and, thus, are relevant to the DOJ’s investigation.” McKown v. United States DOJ, 2018 U.S. Dist. LEXIS 63592 (W.D. Okla. Apr. 16, 2018).

A bad smell from defendant’s place and a missing person justified an emergency entry because of fear of a dead body. State v. Boisselle, 2018 Wash. App. LEXIS 826 (Apr. 16, 2018).*

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Cohen pleadings online for today’s hearing in S.D.N.Y.

Two pleadings are online in Cohen v. United States, 1:18-mj-03161-KMW (S.D. N.Y.). A reply by Cohen may be filed today. Read them. The Government has the better argument. I don’t see Cohen’s argument against a “filter team” even in the ballpark.

Cohen’s request for TRO: Memorandum of Law in Support of Michael D. Cohen’s Order to Show Cause and a Temporary Restraining Order Concerning Warrants Executed on April 9, 2018:
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OH2: Description of “things to be seized” couldn’t be more particular

The search warrant for child pornography was particular and not overbroad. No more particular description was reasonably expected. “Under the circumstances, the search warrant could not reasonably have described the items more precisely.” Defendant’s search residence was in Wisconsin, and he was convicted in Ohio. State v. Maranger, 2018-Ohio-1425, 2018 Ohio App. LEXIS 1574 (2d Dist. Apr. 13, 2018).

The defendant Deputy USMs had an arrest warrant and good reason to believe plaintiff was in his dwelling. Therefore, the entry was valid under Payton, and plaintiff’s Bivens claim fails. Pilchesky v. Barone, 2018 U.S. App. LEXIS 9136 (3d Cir. Apr. 12, 2018).*

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IN: Def’s backpack would have been searched anyway, so inevitable discovery applied

Inevitable discovery applied to the search of defendant’s backpack. He was arrested, and the search would have occurred as a result of that. The merits of defendant’s search claim is thus moot. Winborn v. State, 2018 Ind. App. LEXIS 133 (Apr. 13, 2018).

The search warrant that led to seizure of forfeitable cash was based on probable cause and his claim of false statements in support of the warrrant doesn’t require a Franks hearing. United States v. $52,100 in United States Currency, 2018 U.S. Dist. LEXIS 63081 (S.D. Cal. Apr. 13, 2018).*

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N.D.Tex.: RS came from “extreme nervousness, conflicting stories, and the fact that he was traveling along a drug trafficking corridor”

“The government proved by a preponderance of the evidence that Trooper Styles developed reasonable suspicion of additional criminal activity during the initial stop and before Roberts consented to Trooper Styles’s request to search the Jeep. The facts of this case are similar to those in Pack, 612 F.3d at 361-62, in which the Fifth Circuit held that reasonable suspicion sufficient to support a 35-minute investigatory stop was created by the defendant’s extreme nervousness, conflicting stories, and the fact that he was traveling along a drug trafficking corridor. Id.” United States v. Danyell, 2018 U.S. Dist. LEXIS 61029 (N.D. Tex. Apr. 11, 2018).

Thirteen officers entered defendant’s home with guns drawn, but after the safety sweep, their guns were holstered, and things were calmer. The court finds on the totality defendant’s statement in familiar surroundings was noncustodial. Defendant was also told she was free to leave. United States v. Jones, 2018 U.S. Dist. LEXIS 62265 (N.D. W.Va. Apr. 12, 2018).*

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D.Neb.: Unwarned questioning about control of a bedroom wasn’t custodial

UnMirandized questioning about defendant’s control of a bedroom was a close call, but not found not custodial. “This case presents a close call. On balance, the Court concludes that under Muniz and Fleck and the circumstances of this case, Sergeant Heath’s routine questions about Tapia-Rodriguez’s residency and which bedroom was his do not constitute interrogation. As such, Sergeant Heath could ask those questions without first giving Miranda warnings. Tapia-Rodriguez’s Motion to Suppress Evidence is denied.” United States v. Tapia-Rodriguez, 2018 U.S. Dist. LEXIS 61381 (D. Neb. Apr. 11, 2018)

Defendant’s 2255 is denied. As to the search: “McGinley claims that the warrant was invalid and his counsel should have moved to suppress evidence derived from it. Yet he offers no reason that the warrant was invalid, nor is the Court aware of any.” He also claimed it was a Playpen warrant [but how will that help, since nobody’s won on that?]. United States v. McGinley, 2018 U.S. Dist. LEXIS 61418 (D. Minn. Apr. 11, 2018).*

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CA9: On the scene determination of PC justified arreat and detention for 47 hours, despite later dismissal

There was probable cause for plaintiff’s arrest based on the officer’s on the scene determination. He was held 47 hours and released. The jury in the civil case found for the defendants, and the district court did not abuse its discretion in denying a new trial. Smith v. City & County of Honolulu, 2018 U.S. App. LEXIS 9141 (9th Cir. Apr. 12, 2018).

“Davis challenges the district court’s dismissal of his § 1983 claim against the City for the unconstitutional search of his home. Specifically, he argues that the district court failed to address his allegation that Manley, as the City’s Chief of Police, was a final policymaker such that his order to search Davis’s home without a warrant rendered the City liable absent any established custom or practice. We agree.” Davis v. City of Apopka, 2018 U.S. App. LEXIS 9403 (11th Cir. Apr. 12, 2018).

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Lawfare: Prosecuting Attorneys Alongside Clients: Some Recent Examples

Lawfare: Prosecuting Attorneys Alongside Clients: Some Recent Examples By Harry Larson & Sabrina McCubbin
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OregonLive.com: Oregon is No. 2 in nation in requests for ‘sneak-and-peek’ search warrants

OregonLive.com: Oregon is No. 2 in nation in requests for ‘sneak-and-peek’ search warrants by Maxine Bernstein

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The Legal Intelligencer: Justices to Eye Constitutionality of Consequences for DUI Blood Test Refusals

The Legal Intelligencer: Justices to Eye Constitutionality of Consequences for DUI Blood Test Refusals by Zach Needles:

The Pennsylvania Supreme Court has agreed to hear arguments over whether it’s unconstitutional for a DUI suspect’s refusal of a warrantless blood draw to be used against him at trial.

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Daily Report: Sex Tape Verdict Spurs Debate on Surveillance Law

Daily Report: Sex Tape Verdict Spurs Debate on Surveillance Law by Greg Land:

Two veteran lawyers, former State Bar of Georgia President Robin Frazer Clark and prosecutor-turned-defense attorney Noah Pines, differed sharply in their views of Georgia’s illegal surveillance statute and the applicability of the third party consent rule in the just-concluded case.

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